Does s 198AD(2) apply to a person the subject of favourable decision under s 46A(2)?

The primary judge made the following orders concerning the respondent’s ongoing immigration detention:

3.    From no later than 1.00 pm [AWST] on 27 October 2021:

(a)     the Secretary is to cause any detention of the applicant in immigration detention pending performance of the duty described in Order 2 to occur at the address set out in the affidavit of Anette Hermann filed on 8 September 2021; and

(b)     the applicant be detained at that address by being in the company of and restrained by one or more “officers” as defined under the Act, or by another person or persons directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the applicant.

4.    The parties and Anette and Miguel Hermann are to participate in mediation before a Registrar of the Court, on a date and at a time and place to be fixed by the Registrar after consultation with the participants, to reach agreement upon arrangements for the immigration detention described in Order 3.

5.    The parties and Anette and Miguel Hermann each have liberty to apply in respect of Orders 3 and 4.

The definition of “immigration detention” in s 5 of the Migration Act 1958 (Cth) was as follows:

immigration detention means:

(a) being in the company of, and restrained by:

(i) an officer; or

(ii) in relation to a particular detainee — another person directed by the Secretary or the Australian Border Force Commissioner to accompany and restrain the detainee; or

(b) being held by, or on behalf of, an officer:

(i) in a detention centre established under this Act; or

(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or

(iii) in a police station or watch house; or

(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel — on that vessel; or

(v) in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: May the FCAFC hear an appeal despite the fact that the matter has become moot, if the matter has "utility because of the wider significance for a large number of other cases"?

Question 2: Section 24(1A) of the FCA Act provided: "An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal". Can it be said that, "in circumstances where orders are made, some of which are final in nature and some of which are interlocutory, all of the orders are “interlocutory” for the purposes of s 24(1A)"?

Question 3: Does s 198AD(2) of the Migration Act 1958 (Cth) apply to a person who has been the subject of a favourable decision under s 46A(2)?

Question 4: Are there 3 forms of immigration detention, namely under paragraphs (a) and (b) of the definition of "immigration detention" under s 5 and a residence determination made under s 197AB of the Migration Act 1958 (Cth)?

Question 5: Could the primary judge's detention orders be described as short term?

Question 6: Was it "erroneous for the detention arrangement orders to be characterised as falling within para (a) of the definition of ‘immigration detention’"?

Question 7: Is it correct that "the form of immigration detention in para (a), in terms of location, is determined by the officers"?

Question 8: Can a court "completely remove the capacity of those legally responsible for the detention of an individual to determine where that individual should be held"?

Question 9: Is there "unlimited power or authority to hold an individual in immigration detention wheresoever and howsoever the repository of the power may choose"?

Question 10: Does restraint in the context of para (a) of the definition of ‘immigration detention’ mean lawful restraint?

Question 11: Does restraint in the context of para (a) of the definition of ‘immigration detention’ encompass "the use of such force, viewed objectively, as is reasonably necessary in the circumstances"?

Question 12: Does para (a) of the definition of ‘immigration detention’ "plainly contemplate that those who are authorised to restrain an individual, and to use force if reasonably necessary, will be subject to direction and control by the executive, rather than being mere members of the community such as the Hermanns"?

Question 13: Can it be said that "the statutory context in which the verb “restrain” is used throughout the Migration Act suggests it may not be limited to “direct physical restraint”, but rather includes a variety of constraints on a person’s liberty and freedom of movement"?

Question 14: Did the power in s 23 of the FCA Act extend to making the detention arrangement orders?

Question 15: May there "be orders that can properly be characterised as ancillary to an order in the nature of mandamus, and could therefore be made under s 23 of the FCA Act"?

Question 16: Is s 23 of the FCA Act a wide power?

Question 17: Is the power in s 23 of the FCA Act "conferred to ensure the Court can make those orders that are necessary to ensure the effective determination of a matter, or orders that are reasonably required or legally ancillary to ensuring the Court’s order is effective according to its tenor"?

If the answer to Question 17 is 'yes':

Question 18: Was an order about detaining the respondent at the Hermanns’ house reasonably required to make the mandamus order to perform the removal duty to a regional processing country in s 198AD(2) of the Migration Act 1958 (Cth) effective?

Question 19: Would "an order about re-locating an individual to a particular immigration detention centre to facilitate removal" be reasonably required to make the mandamus order to perform the removal duty to a regional processing country in s 198AD(2) of the Migration Act 1958 (Cth) effective?

Question 20: Would an order "to ensure adequate communications with that individual and their lawyers so as to facilitate removal" be reasonably required to make the mandamus order to perform the removal duty to a regional processing country in s 198AD(2) of the Migration Act 1958 (Cth) effective?

Question 21: Were the detention arrangement orders legally ancillary to the mandamus order?

Question 22: If the answer to Question 17 is 'yes', would "an order concerning adequate communications between the officers charged with removing an individual (and thus complying with the mandamus order) and any medical practitioners treating an individual who may need to be consulted about the conditions under which an individual was to be removed" be legally ancillary to the mandamus order?

The FCAFC answered those questions as follows: